The Volokh Conspiracy
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Second Amendment Roundup: Second Circuit Opines on New York's Gun Restrictions
Some provisions remain enjoined, but the decision on “sensitive places” is problematic.
The U.S. Court of Appeals for the 2nd Circuit released its long-awaited decision in Antonyuk v. Chiumento – all 261 pages of it – on December 8. The court affirmed in part and reversed in part the decision of the Northern District of New York preliminarily enjoining major parts of New York's Concealed Carry Improvement Act, which was enacted to counter the Supreme Court's decision in N.Y. State Rifle & Pistol Ass'n v. Bruen.
The circuit court stripped down the district court's finding that plaintiffs are likely to prevail on the merits regarding the law's provisions on licenses to carry firearms and on sensitive places where firearms may not be possessed. It upheld the lower court's finding that plaintiffs are likely to prevail regarding restricted places where firearms may be possessed on private property open to the public only if the owner positively consents.
First, the court agreed that requiring license applicants to disclose even pseudonymous names under which they post online infringes on the Second Amendment and raises serious First Amendment concerns. Remember those three guys in 1787-88 who signed their names as "Publius"? The court let stand the requirement of "good moral character," which "is a spongy concept susceptible to abuse," but abuses "can still be vindicated in court as they arise."
Second, the court let stand the injunction against enforcement of a gun ban applicable to church members as a violation of the First Amendment's Free Exercise Clause. The ban is not neutral, as owners of retail businesses open to the public may decide whether to allow firearms on their premises, and the ban is not narrowly tailored to meet the state's interest.
Third, the court agreed that plaintiffs are likely to prevail on their claim that the ban on firearms on private property open to the public, unless the property owner posts a conspicuous sign that firearms are permitted, violates the Second Amendment. While historically, enclosed private lands were closed to the public, no historical analogue supports the law's default presumption against carriage on private property open to the public.
That part of the decision is of decisive importance. The law makes it a felony for a license holder to enter any private property open to the public unless it has a "welcome gun owner" sign up. That would include everything from gas stations and fast-food places to hardware stores and used-car lots.
Fourth, and finally, the circuit court overturned the injunction against enforcement of the gun ban at various "sensitive places." The court made a critical error that undercuts much of its analysis. The error arose in the court's search for historical analogues for the law's ban on firearms in public parks, although it extends to its treatment of other "sensitive places." The court's error concerned, just when we thought it was deep-sixed, the Statute of Northampton of 1328.
To be sure, the court's conclusion on parks only extended "at least insofar as the regulation prohibits firearms in urban parks, though not necessarily as to rural parks." The latter includes wilderness parks, forests, and reserves.
I'll have a full report in early January, during which a number of methodological and historical errors will be identified and discussed in detail. Meanwhile, have a Happy Holiday season.
